Pubdate: Sun, 27 May 2012
Source: Helena Independent Record (MT)
Copyright: 2012 Helena Independent Record
Author: Charles S. Johnson


The Montana Supreme Court will hear oral arguments Wednesday on 
separate appeals filed by a medical marijuana industry group and the 
state of Montana.

They are appealing separate portions of a 2011 District Court 
decision that temporarily blocked parts of a much stricter 2011 state 
law from being implemented.

The court will hear the case of Montana Cannabis Industry Association 
and others against the state at 9:30 a.m. in the court's chambers on 
the third floor of the Justice and State Library Building, 215 N. Sanders.

The court is limiting oral arguments to two issues from District 
Court Judge James Reynolds' ruling:

n Whether the judge erred in blocking the law's ban on medical 
marijuana cardholders compensating providers for marijuana products 
and its limit that a provider can provide pot for a maximum of three 
cardholders. There had been no previous restrictions on compensation 
or the number of cardholders a provider could serve. The state 
appealed these parts of Reynolds' decision.

n Whether Reynolds erred in denying a preliminary injunction against 
the enforcement of the entire 2011 Medical Marijuana Act as the 
Cannabis Industry had sought instead of just the five sections he 
blocked. The Montana Cannabis Industry Association appealed this part 
of the ruling.

At issue is Senate Bill 423, which was one of the major bills before 
the 2011 Legislature and subject to many amendments. The Legislature 
passed SB423 only after Democrat Gov. Brian Schweitzer vetoed a bill 
passed by the Republican controlled House and Senate to repeal the 
2004 voter-passed initiative to legalize the use of marijuana for 
certain medicinal purposes. Schweitzer let SB423 become law without 
his signature, but registered a number of objections to it.

"SB423 , in its entirety, is an unconstitutional broadside on the 
rights of Montanans," wrote Bozeman attorneys James Goetz and Devlan 
Geddes for the Montana Cannabis Industry Association and others. "The 
central problem with the act ... is that it is calculated to deny all 
reasonable access to medical marijuana."

Goetz and Geddes devote much of their brief to defending medical 
marijuana as a valid medicine for a number of people, quoting some 
plaintiffs testifying about the "life-saving" nature of medical pot. 
They cited the evidence they presented in the June 2011 hearing that 
marijuana "has important medicinal qualities."

"The evidence shows that, in fact, marijuana use is quite prevalent 
in our society, and that marijuana use, while not totally harmless, 
is relatively benign," their brief said.

They compared the state's attempt to crack down on medical marijuana 
with efforts by some legislators to restrict abortion.

"The parallel to the pattern in abortion cases is obvious," the 
lawyers wrote. "Some legislators hostile to abortion, realizing they 
cannot undo the constitutional case providing procreative rights, 
have tried to kill the right through imposition of a myriad of 
onerous regulations."

The chief problem with the law, the Cannabis Industry Association 
lawyers said, is that it seeks "to choke off access to medical 
marijuana for those in need by eliminating caregiver producers."

Meanwhile, the state attorney general's office defended the law, 
contending that Reynolds had erroneously applied "a fundamental 
rights analysis to the production, sale and use of marijuana for 
medical purposes."

"The District Court's grant of a preliminary injunction as to the 
sections of SB423 prohibiting the commercial production and sale of 
marijuana should be reversed because it relies on an application of 
the rights to pursue employment and health and of privacy that is at 
odds with this court's precedent," wrote Attorney General Steve 
Bullock and two of his assistant attorneys general, James Molloy and 
Stuart Segrest.

"This court has already determined that the right to pursue 
employment is limited to lawful activities. Commercially selling 
marijuana, however, is illegal under Montana law as well as federal law."

Selling pot has been has been illegal under state and federal law for 
decades, the state attorneys said, adding: "It is well within the 
state's police powers to determine the conditions upon which makes it 
illegal for medical purposes."

Neither those challenging SB423, nor Judge Reynolds, "cited a single 
case holding that there is a fundamental right of access to medical marijuana."

The Legislature had before it "a history of abuses concerning the 
sale of marijuana as well as evidence of an exploding industry and an 
exponential growth in use rate.
- ---
MAP posted-by: Jay Bergstrom